ALJDEC decisions subject to certification as final

2011A-577-ROC · Registrar of Contractors · 2011-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2011

APPEARANCES: Complainant appeared on her own behalf, accompanied by her neighbor who was also a witness, Kerry Langholz; Respondent was represented by corporate President and Qualifying Party Ron Gerard.

WITNESSES: Mark Alyea, ROC Inspector Janeen Conway Kerry Langholz Ron Gerard Gary Gerard

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order pertaining to work on her shingle roof. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits A5, A6, A34, A37, A39, A40, A41, A42, A47, A48, A49, A57, A58, A64, A69, A70, A71, A72, A73, A76, A79, A81, A82, A86, A95, and A109 (all photographs) submitted by Complainant, and testimony from the witnesses above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license B.123252-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Ron Gerard is the Qualifying Party. 2. Respondent put a new roof (new felt and shingles) on Complainant’s house in December 2010. On January 28, 2011, Complainant filed a complaint with the ROC that listed six items in need of repair. ROC Inspector Mark Alyea inspected those items and, by issuance of a Corrective Work Order (“CWO”) dated February 17, 2010, ordered corrective work to be done on four of the six items. 3. Complainant would not allow Respondent access to perform the repairs ordered in the CWO. 4. Complainant had another roofing contractor repair her roof in May 2011. She requested a hearing on her complaint so that she could seek restitution for the money she paid the second contractor. The main issue addressed at hearing was whether it was reasonable for Complainant to deny Respondent access to perform the repairs. 5. Two other issues at hearing concerned whether Complainant received proper paperwork documenting the warranty for the shingles and whether Respondent’s work leaked and caused interior damage to the ceiling drywall (Exhibits A5 and A6) in January 2011. 6. Complainant testified that a few weeks after Respondent installed the roof there were rainstorms and the roof leaked. She called Respondent in late December 2010, and Respondent resealed areas of the roof around the chimney and at the joint between the house and flat patio roof. 7. A few more weeks passed. Complainant then noticed interior water staining on the ceiling, as seen in Exhibits A5 and A6. Complainant called another roofing company, New Life Roofing, and had them look at the roof. New Life Roofing had put a new roof on the house in 2000. She did not call Respondent because she did not want Respondent back on the job anymore. She did not like the appearance of the roof and she was not happy about the leaks. She filed the ROC complaint against Respondent in late January 2011. At that point she did not want Respondent back to do any work. She hired New Life Roofing to re-do the roof and it was done in May 2011, which she testified was the earliest New Life Roofing could get to her roof. 8. With regard to the shingle warranty issue, Respondent’s normal practice is to give the client paperwork for the shingle manufacturer’s warranty upon payment in full. Complainant has not paid in full and, therefore, Respondent has not presented her the paperwork. At hearing, Respondent agreed to send the paperwork to Complainant. 9. The evidence shows that Respondent was not given an opportunity to comply with the CWO. 10. The evidence does not support a finding that it was reasonable for Complainant to bring in New Life Roofing without contacting Respondent in January 2011. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9- 108.[4] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. The evidence does not show violation of those provisions. 3. Because Complainant did not allow Respondent an opportunity to correct the items in her complaint, but Respondent was willing to do so, the evidence does not show a violation of the workmanship standards. Because Complainant did not allow access, the evidence does not show failure to comply with the CWO. Because Complainant did not contact Respondent regarding the interior damage and allow Respondent to inspect it to determine the cause and appropriate repair, and because it was not a claim identified in the complaint, the claim concerning the interior water damage is not supported by the evidence. 4. The evidence does not support an award of restitution. 5. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-577 against Respondent Gerard Builders, Inc. be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this day, August 15, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] A third citation, concerning failure to display the license number on all documentation, was not addressed by the evidence presented at hearing.

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